Faculty of Advocates oppose proposed change in sexual offence cases

Senior lawyers have declared their opposition to government proposals to use judges to break down any jury preconceptions in sexual offence cases.

A government consultation has proposed the introduction of statutory jury directions that, if backed, would require judges to tell juries to disregard the timing of when victims reported an attack and any lack of physical resistance.

Holyrood revealed in May that Scotland’s lead prosecutor of sexual crime had voiced scepticism over the move.

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The Faculty of Advocates has now added their opposition to using mandatory jury directions to address ill-founded preconceptions.

“The need for particular directions in any given case is best left to the judge or sheriff presiding over the trial,” the Faculty stated in its response to the consultation. 

“They have heard all the evidence and are best placed to determine the issues in dispute and what directions are best suited to those circumstances.

“The Faculty shares the Government’s concern that ill-founded preconceptions about sexual offences should be addressed, but it considers that this is best done through evidence and discretionary directions.”

The Judicial Institute - the training body for Scottish judges - would be best placed to develop possible directions for such cases and include in the jury manual to help judges when needed, said the Faculty.

Under current practice, the Crown can and do lead expert evidence in individual cases on the different ways in which people respond to sexual assault in an effort to combat misconceptions.

“In any trial where the defence chooses to challenge expert evidence, perhaps by leading contrary expert evidence, then the issue is properly one for the jury to determine based on their assessment of the evidence,” added the Faculty submission. 

“In such circumstances, a requirement for the judge to provide a direction which would favour one expert’s evidence over the other would interfere with the jury’s exclusive role as fact finders. The case law about the type of directions which judges should give in cases with expert evidence is well developed."